Paul M. Heylman worked closely with Mr. Shepard on the case law review and legal analysis contained in this Article. Messrs. Shepard and Heylman thank Mr. William Topping, from whom they received an excellent case listing of NLRB and related federal court decisions in the health care field from 1974 through 1977, courtesy of the American Journal of Law & Medicine.

1 Pub. L. No. 93-360, 88 Stat. 395 (1974) (codified at 29 U.S.C. §§ 152, 158, 169, 183 (Supp. V 1975)).

2 National Labor Relations Act, 29 U.S.C. §§ 151-168 (1970) [hereinafter cited as NLRA].

3 The 1974 Amendments removed a federal statutory exemption of private nonprofit hospitals from the provisions of the NLRA. The NLRB had successfully asserted jurisdiction over proprietary (for-profit) hospitals, which had never been exempted, in 1967. For details concerning these developments, see Shepard, Health Care Institution Amendments to the National Labor Relations Act: An Analysis, 1 Am. J. L. & Med. 41, 41 n.l (1975).

The vast majority of private health care institutions are, of course, nonprofit.

4 S. Rep. No. 766, 93d Cong., 2d Sess. (1974).

5 See NLRA § 1, 29 U.S.C. § 151 (1970).

6 Shepard, supra note 3.

7 As explained in note 3 supra, the Board had successfully asserted jurisdiction over proprietary hospitals prior to enactment of the Amendments. For the NLRB’s position on what qualifies as a health care institution under the Amendments, see Part II (C) of this Article.

Prior to enactment, state labor boards had regulated labor-management relations at private nonprofit health care institutions. Following enactment, the NLRB has extended comity to state-board-supervised elections where the appropriate bargaining unit was not in question. St. Joseph’s Hosp., 221 N.L.R.B. 1253 (1975). In cases where the scope of the appropriate bargaining unit is at controversy, the NLRB has been less willing to extend comity to state board determinations. See, e.g., St. Luke’s Hosp. Center, 221 N.L.R.B. 1314 (1976) (NLRB found that state board determination violated NLRA § 9(b)(1) in combining professionals and nonprofessionals in one unit without consent of professionals). In one case where the NLRB did extend comity to the state board’s determination of the appropriate bargaining unit, the Third Circuit held that the NLRB was obligated to make a de novo determination of the appropriate unit. Extending comity was held not to be a proper exercise of the NLRB’s discretion. Memorial Hosp, of Roxborough v. NLRB, 545 F.2d 351 (3rd Cir. 1976). See New York v. Local 144, Hotel, Nursing Home and Allied Health Services, 410 F. Supp. 225 (S.D.N.Y. 1976) (discussion of NLRB preemption).

8 29 U.S.C. § 152(2) (1970).

9 NLRB v. Natural Gas Util. Dist. of Hawkins County, Tenn., 402 U.S. 600 (1971).

10 Morristown-Hamblen Hosp. Ass’n, 226 N.L.R.B. 76 (1976)Google Scholar.

11 Bishop Randall Hosp., 217 N.L.R.B. 1129 (1975)Google Scholar. Here the employer obtained an injunction against the NLRB on the grounds that the NLRB had exceeded its statutory authority. Board of Trustees v. NLRB, 89 L.R.R.M. 2822 (D. Wyo. 1975). The Tenth Circuit Court of Appeals reversed on the grounds that the District Court lacked jurisdiction to issue this type of injunction against the Board. 523 F.2d 845 (10th Cir. 1975).

12 Camden-Clark Memorial Hosp., 221 N.L.R.B. 945 (1975)Google Scholar (jurisdiction declined where the Board of Trustees of the health care institution, selected by the local city council, was responsible for the day-to-day operation of the institution).

13 NLRA §§ 2(7), 10(a), 29 U.S.C. § 152(7), § 160(a) (1970). Section 2(7) gives the NLRB jurisdiction over employers whose activities “affect commerce.” The NLRB has interpreted this provision as a grant of authority over any employers whose activities have a substantial impact on interstate commerce. East Oakland Community Health Alliance, Inc., 218 N.L.R.B. 1270 (1975)Google Scholar. See NLRB v. Reliance Fuel Oil Corp., 371 U.S. 224 (1963)Google Scholar; Hill v. Florida ex rel. Watson, 325 U.S. 538 (1948) (Congress intended to vest the NLRB with the fullest jurisdictional breadth permissible under the commerce clause of the U.S. Constitution.)

14 This is the same standard previously applied to proprietary hospitals.

15 See East Oakland Community Health Alliance, Inc. 218 N.L.R.B. 1270 (1975)Google Scholar; Marquette General Hosp., 216 N.L.R.B. 301 (1975)Google Scholar.

16 East Oakland Community Health Alliance, Inc., 218 N.L.R.B. 1270 (1975)Google Scholar.

17 Martin Luther Foundation, Inc., 186 N.L.R.B. No. 11 (1970)Google Scholar.

18 Drexel Home, Inc., 182 N.L.R.B. 1045 (1970)Google Scholar.

19 Shriners Hosp, for Crippled Children, 217 N.L.R.B. 806 (1975).

20 See NLRA § 2(14), 29 U.S.C. § 152(14) (Supp. V. 1975).

21 California Medical Ass’n, 223 N.L.R.B. 201 (1976)Google Scholar (jurisdiction asserted despite claim that activities are noncommercial and directed toward scientific and educational purpose).

22 Jack L. Williams, D.D.S., 219 N.L.R.B. 1045 (1975)Google Scholar.

23 Waimea Dispensary, Inc., 218 N.L.R.B. 1337 (1975)Google Scholar.

24 Private Medical Group of New Rochelle, 218 N.L.R.B. 1315 (1975)Google Scholar (jurisdiction asserted over four general practitioners and a surgeon).

25 Mental Health Center of Boulder County, Inc., 222 N.L.R.B. 901 (1976)Google Scholar.

26 Baker Places, Inc., 219 N.L.R.B. 86 (1975)Google Scholar (jurisdiction not asserted, because the health care institution had less than $250,000 gross annual revenue).

27 Trailback, Inc., 221 N.L.R.B. 527 (1975)Google Scholar (jurisdiction asserted over facility providing care for emotionally disturbed adolescents having drug-related problems).

28 Planned Parenthood Ass’n, 217 N.L.R.B. 1098 (1975)Google Scholar, partially overruling Choice, Inc., 212 N.L.R.B. 550 (1974)Google Scholar (jurisdiction declined).

29 Bio-Medical Applications of San Diego, Inc., 216 N.L.R.B. 631 (1975)Google Scholar, overruling (on the basis of the Amendments) Alameda Medical Group, Inc., 195 N.L.R.B. 312 (1972)Google Scholar and Cleveland Avenue Medical Center, 209 N.L.R.B. 537 (1974)Google Scholar.

30 Dane County Chapter American Red Cross, 224 N.L.R.B. 323 (1976)Google Scholar (rejecting, however, the employer’s contention that the blood service was a health care institution).

31 Compare Abilities and Goodwill, Inc., 226 N.L.R.B. 1224 (1976)Google Scholar, with Chicago School Workshop for the Retarded, 225 N.L.R.B. 1207 (1976)Google Scholar (employer whose primary function is rehabilitation is a health care institution within the meaning of the Amendments). See also Baker Places, Inc., 219 N.L.R.B. 86 (1975)Google Scholar.

32 Compare Ming Quong Children’s Center, 210 N.L.R.B. 899 (1974)Google Scholar with St. Peter’s School, 220 N.L.R.B. 480 (1975)Google Scholar (distinguishing Ming Quong).

33 See NLRA § 2(3), 29 U.S.C. § 152(3) (1970).

34 See N.L.R.B. v. Hearst Publications, Inc., 322 U.S. Ill (1944); National Labor Relations Act § 2(11), 29 U.S.C. § 152(11) (1970).

35 See Cedars-Sinai Medical Center, 223 N.L.R.B. 251 (1976)Google Scholar, motion for reconsideration denied, Cedars-Sinai Medical Center, 224 N.L.R.B. 626 (1976)Google Scholar.

36 See id.

37 See Committee of Interns and Residents v. New York State Labor Relations Bd., 88 Mise. 2d 502, 388 N.Y.S.2d 509 (1976).

38 High school students working part-time in hospitals have been denied employee status for some of the same reasons as interns and residents. See Pawating Hospital Ass’n, 222 N.L.R.B. 672 (1976)Google Scholar. But see Beecher Ancillary Services, Inc., 225 N.L.R.B. 642 (1976)Google Scholar (holding that medical technologist student trainees are more apprentices than students, and hence employees). Where the student’s term of work coincides with the school semester, employee status has been denied. Pawating Hospital Ass’n, 222 N.L.R.B. 672 (1976)Google Scholar.

39 S. Rep. No. 766, 93d Cong., 2d Sess. 5 (1974); H.R. Rep. No. 1051, 93d Cong., 2d Sess. 6-7 (1974).

40 2 1 7 N.L.R.B. 765 (1975).

41 Mercy Hosp’s, 217 N.L.R.B. 765 (1975)Google Scholar; Bishop Randall Hosp., 217 N.L.R.B. 1129 (1975)Google Scholar. But see Brattleboro Memorial Hosp., Inc., 226 N.L.R.B. 1036 (1976)Google Scholar (head nurses held to be employees where their authority was limited to personnel assignments and sched-uling and they had no authority to dismiss employees, authorize overtime, or take any part in the hiring process). Whether the Board views head nurses as supervisors or not apparently depends on the facts of each individual case.

42 The rationale for the Mercy Hospitals decision is not entirely clear, particularly in light of what the NLRB admits is a congressional exhortation to avoid proliferation of bargaining units. Apparently the NLRB found a community of interest present among RNs that set them apart from all other employees. The NLRB emphasized that RNs are licensed, and that the Joint Commission on Accreditation of Hospitals requires a centralized, separately administered department of nursing. Yet the Joint Commission also requires separately administered departments of pharmacy, radiology, medical records, and other services. See Joint Commission on Accreditation of Hospitals, Accreditation Manual for Hospitals (rev. ed. 1970). These other departments have been held not to be entitled to separate units. Kaiser Foundation Hosp’s, 219 N.L.R.B. 325 (1975)Google Scholar (unit limited to pharmacists is inappropriate; appropriate unit is one composed of all unrepresented professionals).

43 The NLRB has held that a residual professional unit composed only of a physical therapist and a dietician did not represent an unwarranted fragmentation of bargaining units. This need for separating RNs from other professionals was based upon the singular role of RNs in the health care field. Victor Valley Hosp., 220 N.L.R.B. 977, 978 n.4 (1975).

44 2 1 8 N.L.R.B. 1266 (1975).

45 National Labor Relations Act § 9(b)(1), 29 U.S.C. § 159(b)(1) (1970), provides that the NLRB shall not decide that any bargaining unit is appropriate if the unit includes both professionals and nonprofessionals unless a majority of the professionals vote for inclusion in the combined unit.

46 Subsequent cases generally have followed this unit determination. See, e.g., Newington Children’s Hosp., 217 N.L.R.B. 793 (1975)Google Scholar. But where the LPNs have a prior existing unit with a history of separate bargaining with the employer, they will not be included in the technical unit. See Bay Medical Center, Inc., 218 N.L.R.B. 620 (1975)Google Scholar. This is, however, the exception; generally the LPNs have been included in the technical unit. See, e.g., Kanawha Valley Memorial Hosp., Inc., 218 N.L.R.B. 846 (1975)Google Scholar; McKeesport Hosp., 220 N.L.R.B. 1141 (1975)Google Scholar.

47 Barnert Memorial Hosp. Center, 217 N.L.R.B. 775 (1975)Google Scholar.

48 Separate technical units are not granted automatically in the traditional labor setting; the NLRB looks for a community of interest specific to the technical employees. See Mack Trucks, Inc., 214 N.L.R.B. 382 (1974)Google Scholar.

49 See Barnert Memorial Hosp. Center, 217 N.L.R.B. 775 (1975).

50 Duke University, 226 N.L.R.B. 470 (1976)Google Scholar.

51 Otis Hosp., Inc., 219 N.L.R.B. 164 (1975)Google Scholar (the NLRB will give effect to stipulations that do not contravene its policies).

52 Kanawha Valley Mem. Hosp., Inc., 218 N.L.R.B. 846 (1975)Google Scholar. Occasionally the NLRB has not distinguished between service and technical employees. Instead, a bargaining unit of all nonprofessional employees except the business office clericals has been established. See, e.g., Mt. Airy Foundation, 217 N.L.R.B. 802 (1975)Google Scholar, and Alton Memorial Hosp., 218 N.L.R.B. 856 (1975)Google Scholar. This result occurred where the technical employees were not licensed and where all nonprofessional employees worked the same hours, were paid at approximately the same rate, enjoyed the same fringe benefits, and otherwise had a substantial community of interest. This result is the exception, though; the NLRB generally has not included LPNs and technical employees with all the other nonprofessional employees.

Other classifications of bargaining units have been established. A separate guard unit may be required by § 9(b)(3) of the NLRA. A separate unit of maintenance and repair department employees was found appropriate in St. Francis Hosp.-Medical Center, 223 N.L.R.B. 1451 (1976)Google Scholar. In one unusual case a separate unit of boiler operators was found necessary. Mercy Center, 227 N.L.R.B. No. 265, 94 L.R.R.M. 1534 (1977).

53 NLRA § 8(g), 29 U.S.C. § 158(g) (Supp. V 1975).

54 Id. at § 8(a)(5), 29 U.S.C. § 158(a)(5) (1970).

55 Id. at § 8(a)-(b), 29 U.S.C. § 158(a)-(b) (1970).

56 Id. at § 8(g), 29 U.S.C. § 158(g) (Supp. V 1975).

57 Plumbers, Local 630 (Lein-Steenberg), 219 N.L.R.B. 837 (1975); Laborers, Local 1057 (Mercy Hospital of Laredo), 219 N.L.R.B. 846 (1975); Casey & Glass, Inc., 219 N.L.R.B. 698 (1975)Google Scholar.

58 Plumbers, Local 630 (Lein-Steenberg), 219 N.L.R.B. 837 (1975) (emphasis in original).

59 Id.

60 Id.

61 219 N.L.R.B. 846 (1975); see Casey & Glass, Inc., 219 N.L.R.B. 698 (1975)Google Scholar.

62 See NLRA § 2(3), 29 U.S.C. § 152(3) (1970), which includes striking workers within the definition of employee, protected by § 7 and § 8(a)(1) of the NLRA. Because the workers here were striking in violation of the NLRA, they lost the protected status of employee, and the employer was free to fire them for striking.

63 222 N.L.R.B. 212 (1976).

64 District 1199, RWDSU, 232 N.L.R.B. No. 67, 96 L.R.R.M. 1404 (1977).

65 Walker Methodist Residence, 227 N.L.R.B. No. 238, 94 L.R.R.M. 1516 (1977).

66 District 1199-E, RWDSU, 227 N.L.R.B. No. 26 (1976).

67 548 F.2d 704 (7th Cir. 1977).

68 Laborers Int’l Union of N. Amer., AFL-CIO, Local No. 1057 v. NLRB, No. 75-1854 (D.C. Cir., argued Nov. 3, 1976).

69 2 2 2 N.L.R.B. 1089 (1976).

70 2 2 2 N.L.R.B. 1150 (1976).

71 224 N.L.R.B. 176 (1976).

72 2 2 7 N.L.R.B. No. 198, 94 L.R.R.M. 1419 (1977).

73 2 2 6 N.L.R.B. 309 (1976).

74 St. John’s Hospital and School of Nursing, Inc. v. NLRB, 557 F.2d 1368 (10th Cir. 1977).

75 The court also held that the health care institution could exclude solicitation in the cafeteria and gift shop on the grounds that they are public access areas in a retail commercial setting.

76 5 54 F.2d 477 (1st Cir. 1977), cert, granted, 46 U.S.L.W. 3453 Qan. 17, 1978).

77 5 64 F.2d 208 (7th Cir. 1977).

78 5 5 4 F.2d 477 (1st Cir. 1977), cert, granted, 46 U.S.L.W. 3453 Can. 17, 1978).

79 Paramount General Hosp., 223 N.L.R.B. 1017 (1976)Google Scholar; Bay Medical Center, Inc., 224 N.L.R.B. 69 (1976)Google Scholar.

80 Victor Valley Hosp., 227 N.L.R.B. No. 84, 94 L.R.R.M. 1542 (1977).

81 Western Clinical Laboratory, 225 N.L.R.B. 725 (1976)Google Scholar.

82 Lutheran Hosp, of Milwaukee, Inc. v. N.L.R.B., 564 F.2d 208 (7th Cir. 1977).